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Tuesday, March 12, 2013

CFATS in Senate Version of HR 933

The CFATS program is generally not large
enough to show up in the actual language of a Homeland Security spending bill,
other than the obligatory extension of the program that I noted I last
night’s blog post. We
generally have to look to the Committee Reports on the bill or the Explanatory
Statements that may accompany the bill as it moves from the Appropriations
Committee to the Senate floor.

I mentioned one such statement last night
about the CG-NPPD MOU on CFATS, but there was additional information about the
CFATS program that deserves a more detailed look than that hurried review.

CFATS
Spending

Last year the Homeland Security spending bills from both the
House and Senate cut the money allocated to Infrastructure Security Compliance,
the account the covers both the CFATS program and the yet to be ruled Ammonium
Nitrate Security Program; the House cut the funding in half and the Senate
reduced the spending less drastically, but severely. Fortunately for ISCD,
neither bill passed and they received the 0.16% across-the-board increase
received by most agencies.

Since HR
933 as passed in the House did not include a Homeland Security spending
bill, ISCD would have continued to receive the same increased rate (minus the
9% sequester of course). Since the Senate language does include the DHS
spending bill, the Explanatory Notes provides spending levels for
Infrastructure Security Compliance; $77,945,000 (pg 45). This is down from $99.3 Million in the FY
2012 spending bill.

Furthermore, the
Senate Appropriations Committee places a hold on $20 Million of that “until the Under Secretary for NPPD submits to the
Committees an expenditure plan for the CFATS program for fiscal year 2013”. They will get it eventually (providing
Under Secretary Beers is actually able to get NPPD to comply with a
congressional mandate), but it will complicate the spending by ISCD

And of course, the
Sequester is still in place to further reduce those funds. It will be
interesting to see if Beers addresses these spending issues before Chairman
Shimkus’ (R,IL) Subcommittee hearing on Thursday.

GAO Program Reporting
Requirements

The
Senate language would erase the House
requirement in the FY 2012 spending bill to review the feasibility of
turning the CFATS program over to the Coast Guards much weaker MTSA coverage.
Instead it requires a continuing series of GAO reports on the CFATS program.
Initially GAO would continue its current examination of the ISCD’s “ongoing effort to examine the extent to which DHS has made
progress and encountered challenges in developing a viable
CFATS program” (pg 45).

NOTE: The most recent of these reports will
be issued Thursday as part of the CFATS hearing in before the Subcommittee on Environment and the Economy
(Committee on Energy and
Commerce).

When ISCD has completed a ‘sufficient number
of compliance inspections’ (sufficient is not defined, but this is a long way
off in any reasonable definition because no ‘compliance inspections have yet
been completed) the GAO reporting will shift to looking at:

• How compliance inspections are performed;

• Whether inspectors are properly trained and
have the right skill sets to perform compliance
inspections; and

• If the CFATS program faces any
barriers or challenges in managing the compliance inspection process

ISCD Hiring

After cutting funding and withholding money the Senate
Appropriations Committee addresses the staffing of ISCD. They note that “NPPD
is expected to continue to increase its on-board FTEs [Full Time Equivalents] to
reach the fiscal year 2013 requested level, to include the hiring of the
appropriate level of inspectors to meet mission requirements” (pg 45).
Admittedly the past justification for cutting $20 million has been that ISCD
hasn’t staffed up to their projected requirements so they didn’t need the money
anyway, but hiring the new folks is going to be complicated by the spending
reduction and the Sequester.

ISCD is also being required to report, semi-annually, on “any
variation to the level of inspectors

requested with a justification for the change”.

Briefings Required

In addition to the reports required, the Senate
Appropriations Committee is also expecting ISCD to provide them with a number
of briefings. Topics include:

• Alternative security
programs (downgraded from a
report to a briefing);

• Addressing industry concerns with respect to notifying
industry of individuals identified as being on the Terrorist Screening Database
(TSDB)

Moving Forward

None of these provisions are likely to be changed by any
potential floor amendments to this language in the Senate. The only question is
whether or not HR 933 will pass. All of the reports that I have seen indicate
that “the fix is in” on support by the leadership in both the House and Senate
for the bill as being amended. Whether the leadership in either house has
sufficient control of their members to make this actually happen remains to be
seen.

Congress is currently scheduled to begin their Easter Recess
on March 22nd. This is five days before the current Continuing
Resolution expires.

About Me

Patrick Coyle is a freelance writer dealing with chemical security and safety issues. He has 15 years experience in the US Army with extensive experience in training development, delivery and evaluation. He spent 20 years working in the chemical process industry developing and improving chemical manufacturing processes with a large emphasis on chemical and process safety. He currently writes a daily blog, the Chemical Facility Security News, examining the issues associated with the Chemical Facility Anti-Terrorism Standards administered by the Department of Homeland Security.